Find a Lawyer

Criminal Appeal No. 491 and Murder Reference No. 168 of 1983, heard on 15th December, 1986.

---S. 302--Motive, whether proved--Deceased playing cricket match- Accused hooting at him--Deceased while stopping accused from hooting, slapped him--Occurrence taking plane when deceased returning home after match--No direct evidence of motive produced--Deceased informing witnesses just after occurrence about dispute in playground--Accused admitting incident of hooting and annoyance of deceased--Motive only to extent of dispute and annoyance between accused and deceased over hooting during match, held, was proved in circumstances.

---S. 302--Ocular account, appreciation of--Versions in juxtaposition- Two eye-witnesses returning after Juma prayers, witnessed occurrence, third accompanying deceased on bicycle--Statements of witnesses straightforward, natural having ring of truth--Witnesses found to be 'natural--Defence version not put to any witness nor even to Investigation Officer--Weapon of offence and clothes of accused worn at time of arrest, found stained with human blood--Recovery witnesses straightforward and convincing--Nothing was available to suggest their evidence as untrue--Ocular account corroborated by motive and recoveries, held, had established prosecution case to hilt and defence version could not be accepted to be true or held reasonably probable in circumstances.

---Ss. 302 & 304, Part II--Nature of offence--Injuries not caused on vital part of body--Accused, illiterate person, causing injury on thigh not knowing to sever femoral artery--Intention to kill deceased, he d, could not be attributed to accused but only knowledge that injury was likely to cause death could be imputed--Conviction and sentence altered to one under S. 304, Part II in circumstances.

Munawar Hussain's case 1983 S C M R 1165 ref.

Khalid Farooq Qureshi and Shahid Hamid for Appellant.

Nehmat Khan for the State.

Dates of hearing: 9th and 15th December, 1986.

.--Muhammad Naeem was tried and convicted under section 302, P.P.C. for the murder of Muhammad Mushtaq, deceased, and sentenced by an Additional Sessions Judge of Okara to death, subject to confirmation by this Court, and to pay a fine of Rs.5,000 or in default thereof to undergo one year's rigorous imprisonment. Three-fourth's of the fine, if realised, was ordered to be paid to the legal heirs of Muhammad Mushtaq, deceased. The Appeal (Criminal Appeal No. 491 of 1983) preferred by Muhammad Naeem, convict, against his conviction and sentence and the reference (Murder Reference No. 168 of 1983) sent up by the learned trial Judge for confirmation of the death sentence awarded to the said convict, are both now before us for determination and will be disposed of by this judgment.

2. The brief facts of the case are that Muhammad Din, complainant P.W.6 was a servant of the Mitchells Fruit Farm, Renala Khurd, and was residing at the Farm. His son Muhammad Mushtaq, deceased, was Captain of Al-Fateh Cricket Club, Mitchells Fruit Farm. On 23-10-1981 at 8 a.m. there was a cricket match between Muslim Town Cricket Club and A1-Fateh Cricket Club in the Mitchells Fruit Farm ground, Muhammad Mushtaq, deceased was playing as a Captain of his team. During the match, Muhammad Naeem, accused, who was also employed in the Mitchells Fruit Farm, started hooting indecently, whereupon Muhammad Mushtaq, deceased, tried to stop him, but without any result. The deceased then gave slaps to Muhammad Naeem, accused, whereupon spectators intervened and separated them. At 2-30 p.m. Muhammad Mushtaq, deceased, alongwith his younger brother Kashif Naeem P.W.7, was proceeding from the Mitchells Fruit Farm to Renala Khurd on a bicycle. When they were about one hundred yards away from the eastern gate of the Farm, all of a sudden Muhammad Naeem, accused, armed with a Chhuri, came out from the reed bushes and raised a Lalkara that he would teach a lesson to the deceased for slapping him during the match. Meanwhile Muhammad Din, complainant P.W.6, alongwith Muhammad Din P.W.8 and Muhammad Ashraf (given lap P.W.) were coming in the same direction from the eastern gate, after having said their Jumma prayers. Within the sight of the said witnesses, Muhammad Naeem, accused, dealt a Chhuri blow on the right thigh of Muhammad Mushtaq, deceased, near the joint, who fell down. The witnesses tried to get hold of the accused, but he succeeded in running away alopgwith the Chhuri. Muhammad Din, complainant P.W.s tried to take his son Muhammad Mushtaq deceased, to the hospital for treatment, but in the meantime he died.

3. Muhammad Din, complainant P.W.6, then proceeded to Police Station Renala Khurd, where he lodged the F.I.R. Exh.P.C. at 3-00 p.m., which was recorded by Asghar All S.I. P.W.10. The Investigating Officer then proceeded to the spot, where, after preparing the necessary papers, he sent the dead body of Muhammad Mushtaq, deceased, for post-mortem examination. He took into possession the blood-stained earth from the spot, vide memo. Exh.P.D. and the bicycle P.3 which the deceased was riding, vide memo. Exh.P.E.

4. On 24-10-1981 at 9-00 a.m. Dr. Muhammad Athar P.W.9 conducted the post-mortem examination on the dead body of Muhammad Mushtaq, deceased, and found an incised wound 11 c.m. x 3 c. m: on the medial side of the right thigh with an incised wound on the opposite side 2 c.m. in length and an incised wound 2 c.m. x 1/3 c.m. x skin deep on the back of left shoulder. Death was due to shock and haemorrhage as a result of the incised wound on the thigh, which was sufficient to cause death in the ordinary course of nature. The probable duration between the injury and death was about half an hour and that between death and the post-mortem examination between eighteen to twenty four hours.

5. The same day, i.e. 24-10-1981, Muhammad Naeem, accused, was arrested by Asghar Ali Shah S. I. P.W.10. He was wearing a blood-stained shirt P.4 and blood-stained Shalwar P.5, which was got removed and taken into possession by the Investigating Officer, vide memo. P.F. The accused also led to the recovery of the Chhuri in two pieces, namely, the blade P.6 and the handle P.6/1, which both were blood stained and taken into possession vide memo P . G . All these recoveries were witnessed by Muhammad Din P.W.8, Asghar Ali Shah S.I. P.W.10 and Muhammad Ashraf (given up P.W.). The blood on the shirt P.4, Shalwar P.5, blade of the knife P.6 and the handle of the knife P.6/1, were found to be of human origin, by the chemical examiner and the serologest.

6. At the trial, the prosecution produced Muhammad Din complainant P.W.6 to prove the motive, the said witness, Kashif Saeed P.W.7 and Muhammad Din P.W.8, in proof of the ocular account, Asghar Ali Shah S.I. P.W.10 and Muhammad Din P.W.8 in support of the recoveries and Dr. Muhammad Athar P.W.9 in corroboration of the medical testimony.

7. At the trial, Muhammad Naeem, accused, denied all the accusations that were levelled against him, including that relating to the recoveries of his blood-stained clothes and Chhuri. He, however, admitted having killed the deceased, but in difference circumstances. His version of the account, as submitted by him in his statement under section 342, Cr.P.C., may be reproduced here with advantage:---

"I am innocent. On 23-10-1981 I was present in the Mitchells Fruit Farm grounds where Muhammad Mushtaq, deceased was playing a Cricket Match. Some persons were hooting Muhammad Mushtaq deceased and I also joined those persons who were hooting him. I was rather much vocal. Muhammad Mushtaq saw me with great annoyance from the ground while I was sitting out of it. I left the ground. In the evening I went to cut grass in the Farm near the metalled road. Muhammad Mushtaq alone came there while I was cutting the grass. Muhammad Mushtaq was stronger in physique than me. His weight and age was also more than me. He in order to avenge the remarks i.e. hooting which I. had done outside the playground over powered me and sat on my chest by putting the pressure of thighs or, me I apprehending death at the hands of Muhammad Mushtaq who was going to throttle me to death and in order to release his pressure gave a knife blow on his thigh. I was sure that Muhammad Mushtaq would caused my death and in that event I cause injuries to Muhammad Mushtaq deceased. Had I not done this Mushtaq who was bully and stronger than me would have killed me there and then. None of the P.Ws. were present there. Chhuri P.6 and P.6/1 was never used by me and nor it was recovered from me."

8. The learned trial Judge, placing in juxta position the case of the prosecution and that of the defence, found that the evidence on the record and the surrounding circumstances established the case of the prosecution and not that of the defence. He, therefore, convicted and sentenced Muhammad Naeem, accused, as stated in para. 1. above.

9. We have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. There is no direct evidence as regards motive, other than the statements of Muhammad Din P.W.6, Kashif Saeed P.W.7 and Muhammad Din P.W.8, who heard the Lalkara raised by Muhammad Naeem, appellant, that he would teach a lesson to the deceased for slapping him during the match, None of the three persons claim to have witnessed the cricket match or the slapping. The appellant in his statement in Court admitted that while the deceased was batting during the cricket match, some persons were hooting at him and he also joined in the hooting and was more vocal and that the deceased looked at him with annoyance from the ground due to his behaviour. He, however, did not admit that the deceased gave him slaps. According to the testimony of Muhammad Din P.W.8, Muhammad Din P.W.6, father of the deceased, enquired from the deceased immediately after the assault as to why the appellant had inflicted the blows, whereupon the deceased told his father that he had had a dispute with the appellant in the playground and, therefore, the appellant had dealt Chhuri blows to him. He is an independent witness. He does not mention anything about the slapping. The motive, therefore, stands' proved only to the extent that there had been some dispute between the appellant and the deceased in the playground over the hooting resorted to by the appellant, when the deceased was playing the match, which had annoyed the deceased. It is difficult to accept the version that the deceased had also given slaps to the appellant during that dispute.

10. The evidence as regards the ocular account is furnished by Muhammad Din P.W.6, Kashif Saeed P.W.7 and Muhammad Din P.W.8. The first two awe the father and brother, respectively of the deceased, whereas the third is a totally independent witness. The account of their version already stands reproduced in para. 2 above and need not be repeated. Muhammad Naeem, appellant, also admits the incident, but in different circumstances. His version of the occurrence stands reproduced in para. 7 above and need not be repeated. The only question, therefore, that arises is, whether after placing in juxta position the case of the prosecution and that of the defence, the evidence on the record and the surrounding circumstances conclusively prove the case of the prosecution to the hilt against the appellant, or reasonably shows that the defence version is true or reasonably probable. Muhammad Din P.W.6 and Muhammad Din P.W.8 were returning from the mosque at the relevant time after Juma prayers and were within a short distance from the place where the occurrence took place, when they saw the incident. Kashif Saeed P.W.7 was accompanying the deceased on a bicycle, when the incident took place. All the three witnesses are, therefore, natural witnesses. The defence version was not put to any of the three eye-witnesses, or to Asghar Ali S.I. P.W.10, who investigated the case. The ocular account is straightforward and natural and has a ring of truth. The ocular account, therefore, establishes the case of the prosecution to the hilt against the appellant. The defence version cannot be accepted, as nothing appears from the record from which any inference in its favour can be drawn.

11. The evidence as regards the recoveries is furnished by Muhammad Din P.W.8 and Ch. Asghar Ali S.I. P.W.10. Their evidence is straight forward and convincing. Nothing has been brought out in cross-examination to suggest that their evidence is untrue or cannot be accepted with any degree of safety. The recovery of the blood-stained blade of the knife P.6, the blood-stained handle of the knife P.6/1, at the instance of the appellant, and the fact that at the time of his arrest the appellant had on his person the blood-stained shirt P.4 and the blood-stained Shalwar P.5 stand conclusively proved.

12. The upshot of the above discussion is that the motive, the ocular account and the recoveries prove the case of the prosecution to the hilt against Muhammad Naeem, appellant.

13. The only question that remains is as regards the offence committed by the appellant. There appears to be one incised wound on the right thigh and one incised wound on the back of left shoulder of Muhammad Mushtaq, deceased. Though the injury on the thigh appears to be of substantial dimension, but it is not on the vital part of the body of the deceased. The appellant is an illiterate person and would not have known that by inflicting an injury on the thigh, he would be severing the femoral artery. In these circumstances, the intention to kill the deceased cannot be imputed to the appellant. At best, only the knowledge that the injury was likely to cause death can be imputed to the appellant, if any authority is required for this view, Munawar Hussain's case 1983 S C M R 1165 may be referred. The conviction and sentence under section 302, P:P.C. Is, therefore, not legal and correct and deserves to be set aside. The appellant appears to have committed an offence under section 304-II, P.P.C. We, therefore, alter the conviction of the appellant from one under section 302, P.P.C. to that under section 304-II, P. P. C. and sentence the appellant to ten years' rigorous imprisonment with a fine of Rupees five thousand (Rs.5,000) or in default thereof to undergo further one year's rigorous imprisonment. The fine, if realised, shall be paid to the legal heirs of Muhammad Mushtaq, deceased. The appellant shall also be entitled to the benefit of section 382-B, Cr.P.C.

14. This appeal stands partly accepted in terms of alteration of conviction and reduction in the sentences, as stated above. The sentence of death awarded to Muhammad Naeem, appellant, is NOT confirmed.

S.A. Sentence altered.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.